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Monday, September 19, 2011

Interpreting the provisions of a collective bargaining agreement


Interpreting the provisions of a collective bargaining agreement
Chemung County v CSEA, 277 A.D.2d 792

The Chemung County case makes the point that a Taylor Law agreement may contain a clause that could become a "landmine" if ignored by the arbitrator and ultimately result in a court's vacating an arbitration award issued pursuant to the agreement's "contract arbitration clause."

The case also provides an opportunity to explore a number of factors that could be involved in making this particular arbitration award in consideration of various provisions of the Civil Service Law.

The Decision

Section 2.04 of the collective bargaining agreement negotiated by Chemung County and the Civil Service Employees Association provided that the interpretation of its provisions were to be governed by the relevant provisions of the Civil Service Law and the County's local laws.

Finding that the arbitrator failed to consider this aspect of the agreement in resolving a contract dispute between the parties, the Appellate Division confirmed the lower court's vacating the arbitrator's award in favor of CSEA.

According to the decision, in September 1997 Brian Kennedy was appointed to the position of Social Welfare Examiner Trainee. Kennedy's appointment was subject to a 52-week probationary period. In April 1998, the Kennedy was promoted as a "Temporary Social Welfare Examiner."

Shortly before the expiration of the original 52-week probationary period, Kennedy was terminated. CSEA filed a contract grievance contending that summarily terminating Kennedy constituted a violation of Section 2.04 of the agreement, which concerned "probation upon promotion."

Kennedy, CSEA argued, could not be removed without notice and hearing because he had completed the twelve-week probationary period required in promotion situations as set out in the collective bargaining agreement.

CSEA filed a grievance on Kennedy's behalf. The arbitrator concluded that Kennedy's appointment in April 1998 constituted a promotion subject to a 12-week probationary period as provided for by the agreement. He ruled that Kennedy was wrongly terminated and directed his reinstatement.

The Appellate Division vacated the arbitrator’s award, explained its reasoning as follows:

The arbitration clause in the agreement provides that the arbitrator's award shall be final and binding except that "in the event either party determines that the arbitrator has varied the terms or illegally interpreted the terms of [the agreement] ... such aggrieved party shall have the right to submit that sole issue to the Court ... and the Court shall have jurisdiction of that particular issue".

The general rule applied in such cases is that "a contract should not be interpreted in such a way as would leave one of its provisions substantially without force or effect." Accordingly, said the Appellate Division, the arbitration clause of the agreement precludes an arbitrator from adding to, subtracting from or otherwise modifying the terms of the parties' agreement.

The Appellate Division held that the rules for the classified service adopted by the Chemung County/City of Elmira Regional Civil Service Commission [Commission] contains a provision which, on its face, appears to govern whether the appointment of Kennedy to a higher level position on a temporary basis prior to the expiration of his original 52-week probationary period constitutes a promotion which could trigger the replacement of the original probationary period.

The arbitrator, the court implied, failed to consider the impact of this provision in formulating the award.

Since Section 2.04 of the agreement required the arbitrator "to give due consideration to such civil service rules when rendering his interpretation," Section 2.04 constituted a specifically enumerated limitation on the arbitrator's power.

When, said the court, the arbitrator failed to recognize that his interpretation was controlled by the provisions of Section 2.04 of the agreement, the arbitrator effectively deleted that term in contravention of an express limitation on his power. In other words, the arbitrator's award must be consistent with the relevant provisions of the Civil Service Law and the controlling commission's relevant regulations.

Failing to do so was a fatal defect and the court ruled that vacating the award and remitting the matter to a new arbitrator for reconsideration was proper.

The Remand

What should the new arbitrator consider?

There are a number of elements that the arbitrator probably will have to explore.

The basic argument advanced by CSEA is that Kennedy attained tenure as a result of his having completed a 12-week probationary period after his promotion to "Temporary Social Welfare Examiner" implying that he had attained tenure by estoppel. Accordingly, the first issue to be resolved: what is Kennedy's status in the classified service?

Assuming that the characterization of Kennedy's appointment as "temporary" is correct, the position to which he was "promoted" was probably temporarily vacant because the permanent incumbent was on an authorized leave of absence.

Accordingly, Kennedy would have been appointed to the position in accordance with the provisions of Section 64 of the Civil Service Law. Section 64 authorizes a temporary appointment to be made to an encumbered position or to a vacant position that is expected to be eliminated within six months.

However, such an appointment would not mature into "tenured" status unless Kennedy was appointed to the position as a "contingent permanent" employee in accordance with the provisions of Section 64.4 of the Civil Service Law. It seems unlikely that Kennedy held a contingent permanent appointment since no mention of such his enjoying such a status is referred to in the decision.

As the Court of Appeals said in the Snyder case, the appointing authority must affirmatively act to effect a contingent permanent appointment [Snyder v Civil Service Commission, 72 NY2d, 981].

If, on the other hand, the position was wholly vacant, Kennedy was probably "appointed provisionally" to the position pursuant to Section 65 of the Civil Service Law. However, a provisional employee cannot attain tenure by estoppel in the position unless the specific requirements set out in Section 65.4 are satisfied.

Essentially Section 65.4 provides that if an individual whose name is on a nonmandatory eligible list is serving provisionally in the position and is continued in service beyond the mandatory period of probation otherwise required, he or she attains tenured status by operation of law [Roulette v Town of Hempstead Civil Service Commission, 40 AD2d 611].

In contrast, if the provisional employee is on a mandatory list, he or she cannot claim to have attained tenured status pursuant to Section 65.4 regardless of the duration of his or her appointment [Becker v NYS Civil Service Commission, 61 NY2d 252].

At this point, the arbitrator might well conclude that Kennedy has not attained any tenured status and thus remains a probationary employee. Does this mean that Kennedy may be summarily dismissed? Not necessarily. Some further inquiry by the arbitrator seems essential.

Probationary status

The arbitrator must determine if any rules promulgated by the Commission concerning probationary service apply in Kennedy's situation.

For example, Section 4.5(i) of the Rules of the Classified Service promulgated by the New York State Civil Service Commission [4 NYCRR 4.5(i)], which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, addresses the status of an employee who has not completed his or her probationary term when he or she is appointed on a temporary or provisional basis to a higher level position. Similar provisions have been adopted by many local civil service commissions.

Section 4.5(i), among other things, provides that:

The period of temporary or provisional service rendered by such [an] employee in such higher level position may, at the discretion of the appointing authority, be considered as satisfactory probationary service in his [or her] lower position and may be counted as such in determining the satisfactory completion of such probationary term.

The appointing authority is required to advise the individual in writing "whether or not service in such higher level position shall be considered as satisfactory probationary service." 4 NYCRR 4.5(i) further provides that "in the event of an adverse decision by the appointing authority, the probationer, at his or her request, is to be returned to his or her lower grade position for sufficient time to permit him or her to complete his or her probationary term in that position and the probationer is not to be terminated at the end of his or her probationary term on account of unsatisfactory service unless he or she shall have actually served in such position, in the aggregate, at least a period of eight weeks."

In a "leave situation" such as Kennedy's, unsatisfactory performance in a higher level position may not be considered in determining whether or not the probationer performed satisfactorily in his or her lower level position.

Among the elements that the arbitrator may have to consider are the following:

1. Has Commission adopted a rule similar to 4 NYCRR 4.5(i)?

2. If such a rule is in place, does the appointing authority have any discretion to consider Kennedy's employment in the higher-level position as counting towards his satisfying the probationary requirements of the lower level position and, if so, what was Kennedy told?

3. Assuming Kennedy's service in the higher level position was deemed unsatisfactory, do the Chemung County rules allow Kennedy the option of returning to his lower grade position "for sufficient time to permit him or her to complete his probationary term in that position?"

Assuming that the arbitrator determines that Kennedy has not completed the minimum period of probation required for the position of Social Welfare Examiner Trainee, what are the County's options?

In such situations the courts have ruled that if the appointing authority wishes to remove an individual who has not completed the minimum period of probation for the position, it must comply with the provisions of Section 75, or the disciplinary procedures set out in the collective bargaining agreement.

If, on the other hand, the employee has completed his or her minimum period of probation, he or she may be lawfully terminated without notice or hearing prior to the end of the maximum period of probation.

Notice of termination

Finally, when is the appointing authority required to tell an employee that he or she has not satisfactorily completed his or her probationary period and will be dismissed?

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes "tenured" in the position and thereafter may only be removed for cause after notice and hearing. In other words, the employee has attained tenure by estoppel.

If a probationary employee is given his or her notice of termination on the last day of the employee's probationary period and the employee is continued on the payroll beyond the last day his or her probationary period has he or she attained tenure by estoppel?

In a word, No! As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, as long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position.

Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.


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